March 25, 2004

We posted earlier today that Minnesota attorney Elliot Rothenberg has lost his fight before the Minnesota Supreme Court to eliminate an anti-bias continuing legal education requirement for the State’s lawyers. The result is not surprising and ethicalEsq concurs. However, as we noted in our prior post (where the issues are discussed at some length). there has been strong opposition to the CLE requirement among a portion of Minnesota lawyers who denounce the courses as “ideological indoctrination” violating their constitutional rights to free speech, religious freedom and free conscience. [See, e.g., Powerline, MyShingle, Overlawyered, Political Junkie, Spitbull, and this article from the Minneapolis Star Tribune.]

ethicalEsq remains very skeptical that competent members of the bar can easily be “indoctrinated” by sitting through a 60-minute CLE presentation. ["Annoyed," yes, indoctrinated, no.] We believe that the regulating authorities in each state have the power to require anti-bias CLE — even if the course offerings are far more limited than in Minnesota, where the Court notes the existence of perhaps 150 different course syllabi. [One weblog, strongly disputes that there are adequate ideological choices among Minnesota's anti-bias offerings.]

As the high court states in the Rothenbergdecision upholding Rule 9(A)(2) of the Rules of the Minnesota CLE Board, Rule 2(I) defines continuing legal education courses on the elimination of bias in the legal profession and in the practice of law as courses that are

directly related to the practice of law that [are] designed to educate attorneys to identify and eliminate from the legal profession and from the practice of law biases against persons because of race, gender, economic status, creed, color, religion, national origin, disability, age or sexual orientation.

The Court goes on to find that courses meeting those criteria do not violate Rothenberg’s constitutional rights. Here are some important excerpts from the decision (emphases added):

Rothenberg argues in his brief that the elimination of bias requirement “has turned into an engine of divisive political ideology.” As evidence, Rothenberg identifies approximately 10 courses that he claims represent the politicization of the requirement. href=”http://www.courts.state.mn.us/opinions/sc/current/opa030884-0325.htm#_ftn5″ name=_ftnref5>[5] Rothenberg specifically challenges the Board’s approval of certain courses that discuss Islam.

href=”http://www.courts.state.mn.us/opinions/sc/current/opa030884-0325.htm#_ftnref5″ name=_ftn5>[5] These courses include: “Representing Muslim and Arab Clients After 9-11: Can the Sixth Amendment Right to Counsel Survive?”; “‘With Justice for All’—An Ethics & Elimination of Bias CLE Featuring Morris Dee”; “Civil Liberties in a Post-9/11 World”; “Impeach Justice Douglas!”—a theatrical performance focusing on several issues with which Justice William O. Douglas was involved during his tenure on the U.S. Supreme Court; and “Presumed Guilty: Eliminating Bias in the Legal System.”

Rothenberg asserted that the elimination of bias requirement was unconstitutional, opining that the findings and conclusions of the Race Bias Task Force Report, which formed the basis for the elimination of bias requirement, were based on dubious claims of bias in Minnesota’s justice system. Rothenberg also argued that certain elimination of bias courses promote political beliefs he disagrees with and unconstitutionally promote religion. In particular, Rothenberg referenced courses that he claimed give preferential treatment to Islam and oppose the United States’ efforts against terrorism, as well as capital punishment courses that he alleged presented only one side of the issue.

At oral argument, Rothenberg conceded that “there is prejudice and bias in society” and among lawyers as well. Rothenberg agreed that bigotry, prejudice, and bias “ought to be combated at every turn.” Furthermore, he acknowledged that “lawyers and judges should educate themselves, should * * * reflect on these issues, should want to ensure that their conduct as leaders in society and leaders in government does not hurt anyone [and] does not deny anyone’s rights on the basis of bigotry or prejudice or bias.”

. .

Rothenberg also conceded during oral argument that there are “a vast variety of courses” on the elimination of bias. Nevertheless, Rothenberg argued that the operation of the elimination of bias requirement is unconstitutional because “all the courses have an ideological content” and the presence of any ideological courses or any courses discussing religion is unjustified. Therefore, Rothenberg argues, it would be unconstitutional for our court to punish a lawyer for failing to attend courses on the elimination of bias.

In contrast, the elimination of bias requirement does not force Minnesota lawyers to say “I believe in X” or manifest agreement with anything. It only requires that Minnesota lawyers be passively exposed to certain ideas by attending courses on the elimination of bias in the legal profession and in the practice of law. For this reason, the California Court of Appeals, which appears to be the only other court to have considered a similar issue, held that a California requirement that lawyers attend classes on elimination of bias does not violate the First Amendment. See Greenberg v. State Bar of California, 92 Cal. Rptr. 2d 493, 496 (Cal. Ct. App. 2000) (stating that lawyers are merely “passively exposed to classes relating to these subjects, without being compelled to manifest any agreement or allegiance to their goals or other political agendas.”), rev. denied (Apr. 26, 2000) .

Rothenberg asserts that being forced to pay for a course would make him more than passively exposed to those ideas. However, having concluded that the elimination of bias requirement is germane to the goal of regulating the legal profession and improving the quality of legal services in Minnesota, we also conclude that requiring lawyers to pay for such a course does not raise such concerns.

Rothenberg’s other arguments, that the elimination of bias requirement was designed on an ideological basis or that the Board has approved courses on an ideological basis, also lack any support. Rothenberg has presented no evidence that the elimination of bias requirement was designed on an ideological basis or that the Board has approved courses on an ideological basis. In the context of Rothenberg’s argument, “ideological” appears to be shorthand for something with which he disagrees. Merely asserting that the elimination of bias requirement has ideological origins or is applied ideologically does not create a cognizable claim.

Moreover, we disagree with Rothenberg’s characterization of the elimination of bias requirement as necessarily seeking to inculcate beliefs. Courses approved for elimination of bias credit must be “directly related to the practice of law” and “designed to educate attorneys to identify and eliminate [bias] from the legal profession and from the practice of law.” Rule 2(I), RMBCLE. These courses must be designed to meet educational goals such as educating lawyers regarding barriers to hiring, retention, promotion, and professional development of lawyers of color, women, and others. Such goals illustrate that the elimination of bias requirement seeks to change behavior by informing lawyers how to identify and eliminate bias. For purposes of reference, a course presented in 2001 and discussed in the record before us was entitled “Understanding Deaf Culture and Working with Deaf Clients.” The materials for this course state that its objectives include identifying specific needs of people who are deaf with respect to communication and adaptive equipment and identifying ways of enhancing communication.

We conclude that the elimination of bias requirement serves the legitimate function of informing lawyers how to identify and eliminate bias in the legal system. We recognize Rothenberg’s disagreement with the views expressed by some of the approved elimination of bias courses. However, our decision to prescribe rules allowing a broad array of courses that could qualify for elimination of bias credit was made after taking into consideration concerns by members of the bar who cautioned against having a limited view of what constitutes bias.

[The Court also addressed in a footnote the "captive audience" argument of amicus Peter Swanson]:

Amicus curiae Peter Swanson argues that the failure to allow lawyers to opt out of the requirement makes the elimination of bias requirement unconstitutional because lawyers are a “captive audience.” . . . We have found no case where the Supreme Court has applied the captive audience doctrine in the “negative” sense, that is, where the government requires an individual to be “captive” as opposed to protecting the individual from being captive. Assuming arguendo that the captive audience doctrine is relevant in the context of this case, we believe that it raises essentially the same First Amendment concerns that Rothenberg makes when he argues that he is unconstitutionally forced to attend elimination of bias courses.

[Swanson's point-by-point rebuttal of the Court's opinion, is available at his website, 599 to 1.]

“The state requires lawyers to complete 45 hours of continuing legal education courses every three years. In each reporting period, lawyers are required to complete at least two hours of courses on the elimination of bias in the legal profession and in the practice of law. That typically works out to one course.

That’s right: two hours of anti-bias CLE required every three years, with at least 150 different courses to choose from. I bet lawyer Rothenberg and his allies are about to make a federal case of it.

10 Comments

How the mighty have fallen. Before, it was supposed to be more than 600 classes to satisfy the rule. Now it is down to 150. I challenge you to point out one that is apolitical or non-ideological. I challenge you to name one from a libertarian perspective. I challenge you to name one from a conservative perspective, beyond the Federalist Society seminar that prompted the CLE Board to pass a resolution to deny credit to such seminars in the future. Is there such a thing as a moderate? Will every person who disagrees with the 149 liberal seminars be satisfied with a Federalist Society seminar?

I appreciate that you are a supporter of CLE, generally. But even a supporter of CLE that, by rule, does not deal with substantive law can look to the facts at issue. Do you find it relevant that Minnesota, unlike California, scrutinizes courses for content, does not allow self-study, and states that classes must be “participatory”?

How the mighty have fallen. Before, it was supposed to be more than 600 classes to satisfy the rule. Now it is down to 150. I challenge you to point out one that is apolitical or non-ideological. I challenge you to name one from a libertarian perspective. I challenge you to name one from a conservative perspective, beyond the Federalist Society seminar that prompted the CLE Board to pass a resolution to deny credit to such seminars in the future. Is there such a thing as a moderate? Will every person who disagrees with the 149 liberal seminars be satisfied with a Federalist Society seminar?

I appreciate that you are a supporter of CLE, generally. But even a supporter of CLE that, by rule, does not deal with substantive law can look to the facts at issue. Do you find it relevant that Minnesota, unlike California, scrutinizes courses for content, does not allow self-study, and states that classes must be “participatory”?

Peter, I’m happy to have your differing opinion here, but I’m not persuaded by your focus on numbers. As you know, 600 or 700 was the number of separate sessions available across the state and 150 is the approximate number of different course-content offerings, according to the Court. As I suggested in this posting (and as you totally misconstrued when discussing my prior post at your website), I believe the numbers are not dispositive to the main constitutional issue — that is, even if there were only one anti-bias CLE course available statewide to fulfill the requirement, the Rule would be lawful.
As you know from law school and practice, an appellate court does not reach a broader constitutional question until it has to. Because there are many different courses — not all of which should or would or possibly could be offensive to any reasonable lawyer — this was a consitutionally easy case. Should there come a time when a better case is made on the facts for your theory that there is only one so-called “ideology” available from the session [e.g., one two-hour video presentation required for all to attend to fulfill the requirement], I believe the Court would and should uphold it (so long as there is no requirement to say “I believe X”).
And, no, I don’t think it matters that the classes must be attended in person and be “participatory” (any more than if the non-substantive topic were legal writing, moot court skills). I think you’re incorrect on the facts as to whether California “looks at the content”, but the California case stressed that — as here — the lawyer does not have to profess any particular belief. And, I believe the Minnesota Court has attempted to re-write the rule requirements to take some of your concerns into account.
I have to hit the road for my vacation, so I’ll stop here.

Peter, I’m happy to have your differing opinion here, but I’m not persuaded by your focus on numbers. As you know, 600 or 700 was the number of separate sessions available across the state and 150 is the approximate number of different course-content offerings, according to the Court. As I suggested in this posting (and as you totally misconstrued when discussing my prior post at your website), I believe the numbers are not dispositive to the main constitutional issue — that is, even if there were only one anti-bias CLE course available statewide to fulfill the requirement, the Rule would be lawful.
As you know from law school and practice, an appellate court does not reach a broader constitutional question until it has to. Because there are many different courses — not all of which should or would or possibly could be offensive to any reasonable lawyer — this was a consitutionally easy case. Should there come a time when a better case is made on the facts for your theory that there is only one so-called “ideology” available from the session [e.g., one two-hour video presentation required for all to attend to fulfill the requirement], I believe the Court would and should uphold it (so long as there is no requirement to say “I believe X”).
And, no, I don’t think it matters that the classes must be attended in person and be “participatory” (any more than if the non-substantive topic were legal writing, moot court skills). I think you’re incorrect on the facts as to whether California “looks at the content”, but the California case stressed that — as here — the lawyer does not have to profess any particular belief. And, I believe the Minnesota Court has attempted to re-write the rule requirements to take some of your concerns into account.
I have to hit the road for my vacation, so I’ll stop here.

Out of state attorneys (JAG attorneys stationed overseas, especially) have only one or two courses that will satisfy the rule. How’s that for better facts?

The California Bar approves providers, rather than courses. There appears to have been an amendment recently that allows a non-approved provider or individual attorney to submit an individual course (say, a conference attended in another state), but unless someone complains about the content of an approved provider’s course, the California Bar does not look at content.

The granting of Bias CLE credit is a public forum. I contend that the viewpoint discrimination by the CLE Board affects the choices available to Rothenberg, so it is relevant to his case. But even if the public forum case is for a different day with different plaintiffs, this kind of viewpoint discrimination should give us pause. CLE provdiers _are_ required to say, “I believe X.” Maybe the First Amendment rights of CLE providers is beyond the scope of your weblog, but it is important in discussing this issue.

Out of state attorneys (JAG attorneys stationed overseas, especially) have only one or two courses that will satisfy the rule. How’s that for better facts?

The California Bar approves providers, rather than courses. There appears to have been an amendment recently that allows a non-approved provider or individual attorney to submit an individual course (say, a conference attended in another state), but unless someone complains about the content of an approved provider’s course, the California Bar does not look at content.

The granting of Bias CLE credit is a public forum. I contend that the viewpoint discrimination by the CLE Board affects the choices available to Rothenberg, so it is relevant to his case. But even if the public forum case is for a different day with different plaintiffs, this kind of viewpoint discrimination should give us pause. CLE provdiers _are_ required to say, “I believe X.” Maybe the First Amendment rights of CLE providers is beyond the scope of your weblog, but it is important in discussing this issue.

We agree that the number of courses is not dispositive in this case (except for the public forum argument, which was not addressed by the Court). My reasoning is that requiring someone to attend an ideological non-substantive law seminar is not constitutional merely because one can find an ideology with which he agrees. Your reasoning is that we lawyers are big boys and girls who are not going to be indoctrinated by a two-hour course every three years, no matter how many or few the choices are.

Fair enough. But I think we can agree that Dr. Newdow’s pledge of allegiance case before the U.S. Supreme Court may have a bearing on the “passive listener” argument used by the Minnesota Supreme Court. To be sure, one objection is ideological and the other is religious, but it is doubtful that the “passive exposure” doctrine would resolve any constitutional infirmity in either type of case.

We agree that the number of courses is not dispositive in this case (except for the public forum argument, which was not addressed by the Court). My reasoning is that requiring someone to attend an ideological non-substantive law seminar is not constitutional merely because one can find an ideology with which he agrees. Your reasoning is that we lawyers are big boys and girls who are not going to be indoctrinated by a two-hour course every three years, no matter how many or few the choices are.

Fair enough. But I think we can agree that Dr. Newdow’s pledge of allegiance case before the U.S. Supreme Court may have a bearing on the “passive listener” argument used by the Minnesota Supreme Court. To be sure, one objection is ideological and the other is religious, but it is doubtful that the “passive exposure” doctrine would resolve any constitutional infirmity in either type of case.

[I'm still "under the weather" and unable to make a full response to Peter's last Comment, and don't know when I'm likely to have all cylinders firing again. But, I sent Peter the following thoughts in an email message dated 04-02-04, and I want to thank him for engaging in this dialogue.]

I’m not convinced that your “establishment of an ideology” argument is a winner. Our Constitution is rampant with provisions that “establish” “ideological” requirements — e.g., representative goverment, free flow of commerce between states, freedom of religion, racial equality. Elimination of bias seems to me to be a lot closer in philosophy to the basic rights and priniciples of the Constitution than any ideology that opposes the elimination of bias or is neutral to it.

The fact that there is no “passive listener” test in Establishment of Religion cases does not seem helpful in trying to knock down the anti-bias requirement, because there is no similar ban in the Constitution against establishing non religious “ideologies” — at least, not the ideology that opposes racial and cultural bias.

The Pledge case, therefore, seems inapt — especially since the Court could decide, narrowly here, that the problem is forcing the children in the school setting (as opposed to adults, or even lawyers) to say the Pledge, and not the mere existence of the “under God” phrase. Also, I wonder: If there were 150 versions of the “under God” phrase in the Pledge, including a blank pause at that part of the Pledge that could be chosen by each speaker, wouldn’t the Court be far less likely to conclude that the existence of one choice mentioning God was unconstitutional?

[I'm still "under the weather" and unable to make a full response to Peter's last Comment, and don't know when I'm likely to have all cylinders firing again. But, I sent Peter the following thoughts in an email message dated 04-02-04, and I want to thank him for engaging in this dialogue.]

I’m not convinced that your “establishment of an ideology” argument is a winner. Our Constitution is rampant with provisions that “establish” “ideological” requirements — e.g., representative goverment, free flow of commerce between states, freedom of religion, racial equality. Elimination of bias seems to me to be a lot closer in philosophy to the basic rights and priniciples of the Constitution than any ideology that opposes the elimination of bias or is neutral to it.

The fact that there is no “passive listener” test in Establishment of Religion cases does not seem helpful in trying to knock down the anti-bias requirement, because there is no similar ban in the Constitution against establishing non religious “ideologies” — at least, not the ideology that opposes racial and cultural bias.

The Pledge case, therefore, seems inapt — especially since the Court could decide, narrowly here, that the problem is forcing the children in the school setting (as opposed to adults, or even lawyers) to say the Pledge, and not the mere existence of the “under God” phrase. Also, I wonder: If there were 150 versions of the “under God” phrase in the Pledge, including a blank pause at that part of the Pledge that could be chosen by each speaker, wouldn’t the Court be far less likely to conclude that the existence of one choice mentioning God was unconstitutional?